United States District Court, E.D. Tennessee
A. VARLAN UNITED STATES DISTRICT JUDGE
before the Court is a pro se prisoner's petition for a
writ of habeas corpus filed under 28 U.S.C. § 2254 [Doc.
1], and memorandum in support thereof [Doc. 2]. Respondent
filed a response in opposition thereto [Doc. 10], as well as
a copy of the state record [Doc. 9], and Petitioner filed a
reply [Doc. 11]. After reviewing all relevant filings,
including the state court record, the record conclusively
establishes that Petitioner is not entitled to relief under
§ 2254. Accordingly, no evidentiary hearing is
warranted, see Rules Governing § 2254 Cases,
Rule 8(a) and Schirro v. Landrigan, 550 U.S. 465,
474 (2007), Petitioner's § 2254 petition [Doc. 1]
will be DENIED, and this action will be
STANDARD OF REVIEW
the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), a district court may not grant habeas
corpus relief for a claim that a state court adjudicated on
the merits unless the state court's adjudication of the
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the state court proceeding.
28 U.S.C. § 2254(d)(1)-(2). The § 2254(d) standard
is a hard one to satisfy. Montgomery v.
Bobby, 654 F.3d 668, 676 (6th Cir. 2011) (noting that
“§ 2254(d) . . . is a purposefully demanding
standard . . . ‘because it was meant to be'”)
evening of October 12, 2009, Petitioner and her
then-boyfriend, Shawn Jones, argued with Rhonda and Jimmy
Cutshall (“the victims”) about prescription pills
at the victims' trailer home. State v. Myers,
No. E2012-01814-CCA-R3-CD, 2013 WL 5436955, at *1 (Tenn.
Crim. App. Sept. 27, 2013). Several hours later, on October
13, Petitioner and Jones broke into the victims' trailer
and both of the victims were shot [Id.]. Jimmy
Cutshall died, but Rhonda Cutshall survived [Id.].
on this incident, a Knox County jury found Petitioner guilty
of one count of first-degree premeditated murder, three
counts of first-degree felony murder (which the trial court
merged together), and one count of reckless endangerment.
State v. Myers, No. E2012-01814-CCA-R3-CD, 2013 WL
5436955, at *1 (Tenn. Crim. App. June 25, 2013). Petitioner
appealed, alleging that the evidence was insufficient to
support her convictions, that one indictment against her was
defective, and that the trial court erred in admitting
certain cumulative photographs [Doc. 9-10 p. 46-56]. The
Tennessee Court of Criminal Appeals (“TCCA”)
affirmed the convictions, but remanded the case for the trial
court to merge the homicide convictions. Id. at
also filed a pro se petition for post-conviction relief,
which asserted various claims for ineffective assistance of
counsel and a claim that the evidence was insufficient to
support her convictions [Doc. 9-17 p. 5-15]. The
post-conviction court appointed Petitioner counsel, who filed
an amended petition for post-conviction relief that included
additional claims for ineffective assistance of trial and
appellate counsel [Doc. 9-17 p. 23-26]. After a hearing, the
post-conviction court denied Petitioner relief [Doc. 9-17 p.
34-43; Doc. 9-18]. Petitioner appealed, requesting review of
the denial of five of her claims for ineffective assistance
of trial and appellate counsel [Doc. 9-20 p. 11-21]. The TCCA
affirmed the judgment of the post-conviction court. Myers
v. State, No. E2015-02037-CCA-R3-PC, 2016 WL 6915967
(Tenn. Crim. App. Nov. 24, 2016).
action, Petitioner seeks relief under § 2254 based on
the following claims:
evidence was insufficient to support her conviction for the
first-degree and felony murder of Jimmy Cutshall based on the
theory of criminal responsibility;
indictment was defective;
Counsel was ineffective for:
b. Failing to request a change in venue;
c. Failing to request sequestration of the jury;
d. Failing to refute the serology/DNA report;
e. Failing to argue that the glove containing an unidentified
fingernail was unduly prejudicial and was not evidence that
Petitioner was the shooter;
f. Failing to retain an independent expert to prove
Petitioner was a “battered woman” to refute her
g. Failing to exclude two jurors during voir dire. [Doc. 1 p.
5, 6, and 8].
Sufficiency of the Evidence
challenges the sufficiency of the evidence underlying her
convictions for the first-degree and felony murder of Jimmy
Cutshall [Id. at 5; Doc. 2 p. 1-2]. But the evidence
was sufficient to support her conviction under a
criminal-responsibility theory, especially in light of the
deferential nature of this Court's review.
petition, Petitioner states the following with regard to her
Petitioner was convicted of first-degree murder under the
theory of criminal responsibility.  Petitioner has not
denied that she was present during the crimes[, ] however[, ]
she was not present by choice. She was physically forced and
threatened by codefendant and (then) boyfriend, Shawn Jones,
when she tried to leave. Mr[.] Jones further told Petitioner
that he would not think twice about putting a bullet in her.
She did not take part in the actual crimes and was physically
forced to be there, therefore she should not have been
convicted and sentenced to life in prison.
[Id.]. Petitioner also states as follows with
respect to this claim:
In the case sub judice, no evidence was presented
that the defendant acted with intent to promote or assist in
the commission of the murder of Jimmy Cutshall. The
Petitioner herself was a victim as she was forced by
codefendant Jones to be present while he committed the
murder. When Ms. Myers attempted to leave, Mr. Jones
forcefully made her stay. The evidence in this case was far
from clear. There was no hard evidence presented at
Petitioner's trial showing that she participated in the
crimes committed against the victim in this case.
The proof in this case in no way establishes beyond a
reasonable doubt that Jessica Marie Myers had the requisite
intent to be held criminally responsible for the murder [of]
[Doc. 2 p. 2-3]. Thus, it appears that Petitioner asserts
only that she is entitled to relief under § 2254 from
the TCCA's holding that the evidence was sufficient to
establish that she was liable for the murder of Jimmy
Cutshall under the criminal-responsibility theory because,
according to her, that holding was based on an ...